ORDER
DATED 11-7-2002, WHEREBYTHE APPLICATION MADE ON BEHALF OFAPPELLANT/ACCUSED FOR ESCHEWING/EXCLUSION OFEVIDENCE RELATING TO ALLEGED INTERCEPTEDCOMMUNICATION WAS DISMISSED.'
10. The affidavit in support of the Appeal, inter-alia, read as follows:
'2. That the accompanying memorandum of appeal has been draftedby the counsel under my instructions. I have read and understood thecontents thereof and the same are true and correct to my knowledge.'
11. Thus Respondent Geelani had not invoked Article 227 of the Constitution of India. Hehad filed an appeal under Section 34, POTA against the order dated 11th July, 2002. AsSection 482 Criminal Procedure Code was invoked the petition was numbered as aCriminal Misc. Petition and was placed before a single Judge of the High Court. Itnevertheless remained an Appeal under Section 34, POTA.
12. It would be appropriate to set out, at this stage, Section 34, POTA. It reads asfollows:
'34. (1) Notwithstanding anything contained in the Code, an appeal shalllie from any judgment, sentence or order, not being an interlocutory order,of a Special Court to the High Court both on facts and on law.
Explanation- For the purposes of this section, 'High Court' meansa High Court within whose jurisdiction, a Special Court which passed thejudgment, sentence or order, is situated.
(2) Every appeal under Sub-section (1) shall be heard by a bench oftwo judges of the High Court.
(3) Except as aforesaid, no appeal or revision shall lie to any courtfrom any judgment, sentence or order including an interlocutory order of aSpecial Court.
(4) Notwithstanding anything contained in Sub-section (3) ofSection 378 of the Code, an appeal shall lie to the High Court against anorder of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within aperiod of thirty days from the date of the judgment, sentence or orderappealed from: Provided that the High Court may entertain an appeal after theexpiry of the said period of thirty days if it is satisfied that the appellanthad sufficient cause for not preferring the appeal within the period ofthirty days.'
13. A plain reading of Section 34 shows that no appeal would lie against an interlocutoryorder. It could not be denied that the order dated 11th July, 2002 was an interlocutoryorder. It must also be noted that the Appeal must be heard by a bench of two judges of theHigh Court.
14. It must be mentioned that Respondent Shaukat Hussain had also filed a CriminalMisc. Application No. 2484 of 2002 praying that the order dated 11th July, 2002 bequashed.
15. By the impugned judgment the High Court has disposed of all the abovePetitions/Applications. The High Court has not mentioned whether it was exercising itspower of superintendence under Article 227 of the Constitution of India or its inherentpower under Section 482 of the Criminal Procedure Code. The question thus arises as towhat power or jurisdiction the High Court has exercised. The only source of powerwhich might have been used/invoked was either under Article 227 of the Constitution ofIndia or the inherent power under Section 482 Criminal Procedure Code. The furtherquestion which then arises is whether, on the facts of this case, the High Court could orshould have exercised power under Article 227 or jurisdiction under Section 482.
16. For a consideration of these questions it is first necessary to note the stage atwhich the trial was when the impugned judgment was delivered. This is best indicated byreproducing herein a relevant paragraph from the impugned judgment. The paragraphreads as follows:
'I am told that in the meantime the prosecution evidence has beencompleted and the trial of the case is at its fag end. Therefore, it will beappropriate that this court restricts the decision on the legal points whichare absolutely necessary to decide leaving all other objections raised inthese petitions to be canvassed before the trial court for consideration atthe time of the final decision.'
17. As a being set out hereafter there is no legal point which was 'absolutelynecessary' to be decided at that stage.
18. Mr. Shanti Bhushan submitted that the High Court had exercised power underArticle 227 of the Constitution of India. As stated above the High Court does not statethat it is exercising power of superintendence under Article 227 of the Constitution ofIndia. To be remembered that Respondent Geelani had not invoked Article 227 of theConstitution of India. Thus Dr. Dhavan submitted that the order was passed in exercise ofinherent jurisdiction under Section 482 of the Criminal Procedure Code. The impugnedorder is a common order passed in all the Applications/Petitions. It therefore follows thatthe impugned order cannot be in exercise of the power of superintendence under Article227 of the Constitution of India. For this reason it is difficult to accept the submission ofMr. Shanti Bhushan that the order is under Article 227 of the Constitution of India.
19. We however are not required to go into the controversy whether the impugnedorder is under Article 227 of the Constitution of India or passed in exercise of inherentjurisdiction under Section 482 of the Criminal Procedure Code. It appears to us that, onfacts of this case, neither the power under Article 227 of the Constitution of India norinherent jurisdiction under Section 482 of the Criminal Procedure Code should have beenexercised, even if such powers were available.
20. The law on the subject is clear. It is now necessary to look at the law.
21. In the case of State of Gujarat v. V.S. Vaghela and Ors. reported in : [1968]3SCR692 it is held that Article 227 of the Constitution of India gives the High Court thepower of superintendence over all Courts and Tribunals throughout the territories inrelation to which it exercises jurisdiction. It is held that this jurisdiction cannot be limitedor fettered by any act of the State Legislature. It is held that the supervisory jurisdictionextends to keeping the subordinate Tribunal's within the limits of the authority and toseeing that they obey the law.
22. In the case of Madhu Limaye v. State of Maharashtra : 1978CriLJ165 the question was whether the High Court can exercise its inherent power underSection 482 of the Criminal Procedure Code to quash an interlocutory order. In thisjudgment the provision of Section 397(2) of the Criminal Procedure Code, which barreda revision against an interlocutory order, were also considered. It was held that thepurpose of putting a bar on the power of revision in relation to any interlocutory orderpassed, in an appeal, trial or other proceeding is to bring about expeditiousdisposal of cases finally. It was held that more often than not the revisional power of theHigh Court was resorted to in relation to interlocutory orders for delaying the finaldisposal of the proceeding it was held that the Legislature in its wisdom decided to checkthis delay by introducing Section 397(2). It was held that Section 482 provided that'Nothing in the Code' shall be deemed to limit or affect the inherent powers of the HighCourt. It was held that the term 'Nothing in the Code' would include Section 397(2). Itwas held that Section 397(2) could not prevent the High Court from exercising itsinherent powers under Section 482. It was held that in exercising power under Section482 the High Court must adhere to the following principles viz. (a) that the power is not tobe resorted to if there is a specific provision in the Code for redress of grievance of theaggrieved party; (b) that it should be exercised very sparingly to prevent abuse of processof any Court or otherwise to secure the end of justice; (c) that it should not be exercisedas against the express bar of law engrafted in any other provision of the Code.
23. In the case of Jagir Singh v. Ranbir Singh and Anr. : 1979CriLJ318 it is held as follows:
'6. If the revision application to the High court could not be maintainedunder the provisions of the Criminal Procedure Code, could the order of theHigh Court be sustained under Article 227 of the Constitution, as nowsuggested by the respondent? In the first place the High Court did notpurport to exercise its power of superintendence under Article 227. Thepower under Article 227 is a discretionary power and it is difficult toattribute to the order of the High Court such a source of power when theHigh Court itself did not, in terms, purport to exercise any suchdiscretionary power. In the second place the power of judicialsuperintendence under Article 227 could only be exercised sparingly, tokeep subordinate Courts and Tribunals within the bounds of their authorityand not to correct mere errors. Where the statute banned the exercise ofrevisional powers by the High Court, it would indeed require veryexceptional circumstances to warrant interference under Article 227 of theConstitution since the power of superintendence was not meant tocircumvent statutory law.'
24. In the case of Krishnan v. Krishnavenii : 1997CriLJ1519 it is heldthat even though a second revision to the High Court is prohibited by Section 397(3) ofthe Criminal Procedure Code, the inherent power is still available under Section 482 ofthe Criminal Procedure Code. It was held that the object of criminal trial is to renderpublic justice, to punish the criminal and to see that the trial is concluded expeditiouslybefore the memory of the witness fades out. It is held that the recent trend is to delay thetrial and threaten the witness or to win even the witnesses by promise or inducement. Itis held that these malpractices need to be curbed and that public justice can be ensuredonly if trial is allowed to be conducted expeditiously. It is held that even though thepower under Section 482 is very wide it must be exercised sparingly and cautiously andonly to prevent abuse of process or miscarriage of justice.
25. In the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrates andOrs. : 1998CriLJ1 it has been held as follows:
'21. The question which arise for consideration are if in the circumstancesof the case, the appellants rightly approached the High Court underArticles 226 and 227 of the Constitution and if so, was the High Courtjustified in refusing to grant any relief to the appellants because of theview which it took of the law and the facts of the case. We have, thus,to examine the power of the High Court under Article 226 and 227 ofthe Constitution and Section 482 of the Code.
22. It is settled that the High Court can exercise its power of judicialreview in criminal matters. In State of Haryana v. Bhajan Lal : 1993CriLJ1042 thisCourt examined the extraordinary power under Article 226 of theConstitution and also the inherent powers under Section 482 of theCode which it said could be exercised by the High Court either toprevent abuse of the process of any court or otherwise to secure theends of justice. While laying down certain guidelines where the courtwill exercise jurisdiction under these provisions, it was also stated thatthese guidelines could not be inflexible or laying rigid formulae to befollowed by the courts. Exercise of such power would depend upon thefacts and circumstances of each case but with the sole purpose to preventabuse of the process of any court or otherwise to secure the ends ofjustice. One of such guidelines is where the allegations made in thefirst information report or the complaint, even if they are taken at theirface value and accepted in their entirety do not prima facie constituteany offence or make out a case against the accused. Under Article 227the power of superintendence by the High Court is not only ofadministrative nature but is also of judicial nature. This article confersvast powers on the High court to prevent the abuse of the process oflaw by the inferior courts and to see that the stream of administration ofjustice remains clean and pure. The power conferred on the High Courtunder Article 226 and 227 of the Constitution and under Section 482 ofthe Code have no limits but more the power due care and caution is tobe exercised while invoking these powers. When the exercise ofpowers could be under Article 227 or Section 482 of the Code it maynot always be necessary to invoke the provisions of Article 226. Someof the decisions of this Court laying down principles for the exercise ofpowers by the High Court under Article 226 and 227 may be referredto.
23. In Waryam Singh v. Amarnath : [1954]1SCR565 this Courtconsidered the scope of Article 227. It was held that the High Courthas not only administrative superintendence over the subordinate courtsand tribunals but it has the power of judicial superintendence. TheCourt approved the decision of the Calcutta High Court in Dalmia JainAirways Ltd. v. Sukumar Mukherjee : AIR1951Cal193 where theHigh Court said that the power of superintendence conferred by Article227 was to be exercised most sparingly and only in appropriate cases inorder to keep the subordinate courts within the bounds of their authorityand not for correcting their mere errors. The Court said that it was,therefore, a case which called for an interference by the Court of theJudicial Commissioner and it acted quite properly in doing so.
24. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta : AIR1975SC1297 this Court again reaffirmed that the power of superintendence ofthe High Court under Article 227 being extraordinary was to beexercised most sparingly and only in appropriate cases. It said that theHigh Court could not, while exercising jurisdiction under Article 227,interfere with the findings of fact recorded by the subordinate court ortribunal functioned within the limits of its authority and that it could notcorrect mere errors of fact by examining the evidence or re-appreciatingit. The Court further said that the jurisdiction under Article 227 couldnot be exercised, 'as the cloak of an appeal in disguise. It does not liein order to bring up an order or decision for rehearing of the issuesraised in the proceedings'. The Court referred with approval thedictum of Morris, L.J. in R. v. Northumberland Compensation AppealTribunal (1952) 1 All E.R. 122.
25. In Nagendra Nath Bora v. Commr. Of Hills Divisions : [1958]1SCR1240 this Court observed as under:
26. 'It is thus, clear that the powers of judicial interference under Article227 of the Constitution with orders of judicial or quasi-judicial natureare not greater than the powers under Article 226 of the Constitution.Under Article 226, the power of interference may extend to quashing animpugned order on the ground of a mistake apparent on the face of therecord. But under Article 227 of the Constitution the power ofinterference is limited to seeing that the tribunal functions within thelimits of its authority.' (emphasis supplied)
26. In the case of Industrial Credit and Investment Corporation of India Ltd. v.Grapco Industries Ltd. and Ors. : [1999]3SCR759 it has been held that thereis no bar on the High Court examining merits of a case in exercise of its jurisdictionunder Article 227 of the Constitution of India if the circumstances so require. It has beenheld that, under Article 227 of the Constitution of India, the High Court can eveninterfere with interim orders of Courts and Tribunal's if the order is made withoutjurisdiction.
27. In the case of Roy V.D. v. State of Kerala, reported in : 2001CriLJ165 thequestion was whether arrest and search by an officer not empowered or authorised andtherefore in violation of Section 41 and 42 of the Narcotics Drugs and PsychotropicSubstances Act, 1985 was per se illegal and would vitiate trial. This Court held that whenCriminal proceedings are initiated on the basis of material collected on search and arrestwhich are per se illegal, power under Section 482 can be exercised to quash theproceedings as continuance of such proceedings would amount to abuse of the process ofthe Court.
28. In the Case of Puran v. Rambilas and Anr. : 2001CriLJ2566 this Court has held that the High Court's inherent jurisdiction under Section 482 is notaffected by the provisions of Section 397(3) of the Code of Criminal Procedure. It is heldthat the High Court can interference even if the order is an interlocutory order. It is held thatfor securing the end of justice the High Court can interfere with an order which causesmiscarriage of justice or is palpably illegal or is unjustified. It was also noticed that theHigh Court may refuse to exercise jurisdiction, under Section 482, on the basis of self-imposedrestriction.
29. In the case of Satya Narayan Sharma v. State of Rajasthan : 2001CriLJ4640 it has been held that Section 482 of the Criminal Procedure Code startswith the words 'Nothing in the Code'. It is held that this inherent power can be exercisedeven if there is a contrary provision in the Criminal Procedure Code. It is held thatSection 482 of the Criminal Procedure Code does not provide that inherent jurisdictioncan be exercised 'notwithstanding any other provision contained in any other enactment'.It has been held that if any other enactment contains a specific bar then inherentjurisdiction cannot be exercised to get over that bar.
30. In the case of Ouseph Mathai and Ors. v. M. Abdul Khadir : AIR2002SC110 it has been held as follows:
'In Waryam Singh v. Amarnath : [1954]1SCR565 this Court held thatpower of superintendence conferred by Article 227 is to be exercised moresparingly and only in appropriate cases in order to keep the subordinatecourts within the bounds of their authority and not for correcting mereerrors. This position of law was reiterated in Nagendra Nath Bora v.Commr. Of Hills Division and Appeals : [1958]1SCR1240 . InBabhutmal Raichand Oswal v. Laxmibai R. Tarte : AIR1975SC1297 thisCourt held that the High Court not, in the guise of exercising itsjurisdiction under Article 227 convert itself into a court of appeal when thelegislature has not conferred a right of appeal. After referring to thejudgment of Lord Denning in R. v. Northumberland Compensation AppealTribunal, ex. p. Shaw (All ER at p. 128) this Court in Chandavarkar SitaRatna Rao v. Ashalata S. Guram held:
'20. It is true that in exercise of jurisdiction under Article 227 of theConstitution the High Court could go into the question of facts or lookinto the evidence if justice so required it, if there is any misdirection inlaw or a view of fact taken in the teeth of preponderance of evidence.But the High Court should decline to exercise its jurisdiction underArticles 226 and 227 of the Constitution to look into the fact in theabsence of clear and cut down reasons where the question dependsupon the appreciation of evidence. The High Court also should notinterfere with a finding within the jurisdiction of the inferior tribunalexcept where the findings are perverse and not based on any materialevidence or it refuted in manifest injustice (see Trimbak GangadharTelang v. Ramchandra Ganesh Bihde, : AIR1977SC1222 . Except tothe limited extent indicated above, the High Court has no jurisdiction.In our opinion therefore, in the facts and circumstances of this case onthe question that the High Court has sought to interfere it is manifestthat the High Court has gone into questions which depended uponappreciation of evidence and indeed the very fact that the learned trialJudge came to one conclusion and the Appellate Bench came toanother conclusion is indication of the position that two views werepossible in this case. In preferring one view to another of factualappreciation of evidence, the High court transgressed its limits ofjurisdiction under Article 227 of the Constitution. On the first point,therefore, the High Court was in error.'
6. In Laxmikant Revchand Bhojwani v. Pratapsing MohansinghPardeshi : (1995)6SCC576 this Court held that the High Court wasnot justified in extending its jurisdiction under Article 227 of theConstitution of India in a dispute regarding eviction of tenant underthe Rent Control Act, a special legislation governing landlord-tenantrelationship. To the same effect is the judgment in Koyilerian Janakiv. Rent Controller (Munsiff) : (2000)9SCC406 .
7. In the present appeals, the High court appears to have assumed thejurisdiction under Article 227 of the Constitution without referring tothe facts of the case warranting the exercise of such a jurisdiction.Extraordinary power appear to have been exercised in a routinemanner as if the power under Article 227 of the Constitution was theextension of powers conferred upon a litigant under a specified statute.Such an approach and interpretation is unwarranted. By adopting suchan approach some High Courts have assumed jurisdiction even inmatters to which the legislature has assigned finality under thespecified statues. liberal assumption of powers without reference tothe facts of the case and the corresponding hardship to be suffered bya litigant has unnecessary burdened the courts resulting inaccumulation of arrears adversely affecting the attention of the court tothe deserving cases pending before it.' (emphasis supplied)
31. In the case of State of Karnataka v. M. Devendrappa and Anr. : 2002CriLJ998 , this Court has held that the High Court has inherent power underSection 482 Criminal Procedure Code to quash proceedings. It is held that the powershould be exercised to stifle a legitimate prosecution. It is held that the High court shouldnot assume the role of a trial Court and embark upon an enquiry. It is held that the powershould be exercised sparingly, with caution and circumspection.
32. Thus the law is that Article 227 of the Constitution of India gives the High Courtthe power of superintendence over all Courts and Tribunals throughout the territories inrelation to which it exercises jurisdiction. This jurisdiction cannot be limited or fetteredby any act of the State Legislature. The supervisory jurisdiction extends to keeping thesubordinate Tribunal's within the limits of their authority and to seeing that they obey thelaw. The powers under Article 227 are wide and can be used, to meet the ends of justice.They can be used to interfere even with an interlocutory order. However, the power underArticle 227 is a discretionary power and it is a difficult to attribute to an order of the HighCourt, such a source of power, when the High Court itself does not in terms purport toexercise any such discretionary power. It is settled law that this power of judicialsuperintendence, under Article 227, must be exercised sparingly and only to keepsubordinate Courts and Tribunal's within the bounds of their authority and not to correctmere errors. Further where the statute bans the exercise of revisional powers it wouldrequire very exceptional circumstances to warrant interference under Article 227 of theConstitution of India since the power of superintendence was not meant to circumventstatutory law. It is settled law that the jurisdiction under Article 227 could not beexercised 'as the cloak of an appeal in disguise'.
33. Section 482 of the Criminal Procedure Code starts with the words 'Nothing in thisCode'. Thus the inherent jurisdiction of the High Court under Section 482 of theCriminal Procedure Code can be exercised even when there is a bar under Section 397 orsome other provisions of the Criminal Procedure Code. However as is set out in SatyaNarayanan Sharma's case (supra) this power cannot be exercised if there is a statutory barin some other enactment. If the order assailed is purely of an interlocutory character,which could be corrected in exercise of revisional powers or appellate powers the HighCourt must refuse to exercise its inherent power. The inherent power is to be used only incases where there is an abuse of the process of the Court or where interference isabsolutely necessary for securing the ends of justice. The inherent power must beexercised very sparingly as cases which require interference would be few and farbetween. The most common case where inherent jurisdiction is generally exercised iswhere criminal proceedings are required to be quashed because they are initiatedillegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall inthis category. It must be remembered that the inherent power is not to be resorted to ifthere is a specific provision in the Code or any other enactment for redress of thegrievance of the aggrieved party. This power should not be exercised against an expressbar of law engrafted in any other provision of the Criminal Procedure Code. This powercannot be exercised as against an express bar in some other enactment.
34. This being the law let us now see whether the High Court was right in interferingat this stage. as has been set out herein above, by the time the High court delivered theimpugned judgment the evidence, objected to, had already been recorded. The orderdated 11th July, 2002 was clearly an interlocutory order. Section 34, POTA clearlyprovides that no appeal or revision would lie to any Court from an order which was aninterlocutory order. As stated above the impugned order is a common order in allApplications/Petitions. Respondent Geelani had filed an Appeal under Section 34, POTA.Merely because he chose to invoke Section 482 of the Criminal Procedure code did notmean that his application was not an Appeal. Clearly the High Court could not haveinterfered at this stage. The High Court has not indicated that it was exercising power ofsuperintendence under Article 227. Such a power being a discretionary power it isdifficult to attribute to the order of the High Court such a source of power. Evenotherwise in respect of Respondent Geelani power under Article 227 could not have beeninvoked or exercised.
35. On facts of this case we find that the effect of the impugned order is that thestatutory provision of Section 34, POTA have been circumvented. The impugned orderhas also led to the very peculiar situation set out hereinabove. To repeal under Section34, POTA the appeals is to be heard by a bench of two judges of the High Court. We areinformed that the appeal is being heard by a bench of two Judges of the High Court. Anappeal under Section 34, POTA is both on facts and on law. The correctness of theinterlocutory order could, by virtue of Section 34, POTA, have been challenged only inthe appeal filed against the final judgment. The respondents by filing theApplication/Petitions and the learned Judge having chosen to entertain them, has resultedin a party being deprived of an opportunity of canvassing an important point of law inthe statutory Appeal before the division bench. The peculiar situation is that the divisionbench, hearing a statutory appeal (both on law and facts) is bound/constrained by anorder of a single Judge. The order of the Special Judge is based on an interpretation of thevarious provisions of POTA. The Special Judge undoubtedly had authority andjurisdiction to interpret the various provisions of POTA and other laws. The SpecialJudge had jurisdiction to decide whether the evidence collected by interception could beused for proving a charge under POTA. The Special Judge was acting within the limits ofhis authority in passing the impugned order. We are told that before single Judge of theHigh Court the arguments, by both sides, went on for approximately two weeks. Evenbefore us considerable time was taken. This is being mentioned only to indicate that thequestion is not so clear. It requires interpretation of various provisions of POTA.Neither the power under Article 227 nor the power under Section 482 enabled the HighCourt to correct an error in interpretation even if the High Court felt that the order dated11th July 2002 was erroneous. Even if the High Court did not agree with the correctnessof that order, the High Court should have refused to interfere as the order could becorrected in the appeal under Section 34, POTA. To be remembered that by the time theimpugned order was passed the evidence had already been recorded. Thus there was noabuse of process of Court which could now be prevented. Even the end of justice did notrequire interference at this stage. In fact the ends of justice required that the statutoryintent of Section 34, POTA be given effect to. The High court should have directed theRespondents to raise all such points in the statutory appeal, if any required to be filedunder Section 34, POTA. If in the appeal the division bench felt that the order was notcorrect or that it was erroneous it would set aside the order, eschew the evidence and nottake the same into consideration. Thus no prejudice was being caused or would becaused to the respondents. Their rights were fully protected as per the provisions ofPOTA. At this stage there was no miscarriage of justice or palpable illegality whichrequired immediate interference. We are therefore of the opinion that even if powersunder Section 227 or under Section 482 could have been exercised this was a case wherethe High Court should not have exercised those powers.
36. It was submitted that the prosecution had not raised the point of maintainability ofthe Applications/Petitions before the High Court. It was submitted that the prosecutionchose to argue on merits before the High Court and therefore they should now not bepermitted to raise these contentions before this Court. It does appear that the question ofmaintainability was not argued the High Court. However we are informed thatSection 34, POTA was brought to the notice of the High Court. The High court was alsoaware that, by the time it heard the matter, the evidence had already been recorded andthe trial had reached the final stage. On the above-mentioned settled law the High Courtshould have on its refused to interfere and should have left the parties to agitate theircontentions in the appeal to be filed under Section 34, POTA.
37. It must be mentioned that before us also arguments on merits were made. At onestage this Court did consider giving a decision of merits. However on a properconsideration of the matter it appears to us that to give a decision on merits would be toperpetrate the mistake committed by the High Court. It would result in depriving one orthe other party of a valuable rights of agitating the point in the statutory appeals, whichare at present going on before the division bench of the High Court. We, therefore refrainfrom expressing any opinion on merits. We clarify that all parties will be free to urge allquestions in the pending appeals before the division bench of the High Court.
38. In the above view we allow the appeals and set aside the impugned order. Therewill be no order as to cost.